Citation Nr: 0420739
Decision Date: 08/12/04 Archive Date: 10/04/04
DOCKET NO. 03-24 564 DATE AUG 12 2004
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for osteoarthritis of the right hip.
2. Entitlement to service connection for osteoarthritis of the left hip.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans Affairs
ATTORNEY FOR THE BOARD
Nicholas Xanthakos, Associate Counsel
INTRODUCTION
The veteran had active service from March 1979 to October 2000.
The case comes before the Board of Veterans' Appeals (Board) from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. At present, this appeal is remanded to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required on his part.
REMAND
On November 9,2000, the Veterans Claims Assistance Act (VCAA) was enacted and became effective. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). The VCAA essentially eliminated the requirement that a claimant submit evidence of a well-grounded claim and provides that VA will notify the claimant and the claimant's representative, if any, of information required to substantiate a claim and will assist the claimant in obtaining evidence necessary to substantiate a claim. VA also revised the provisions of 38 C.F.R. § 3.159 in view of the VCAA statutory changes. See 66 Fed. Reg. 45,620-32 (Aug. 29, 2001). The amendments were effective November 9,2000, except for the amendment to 38 C.F.R. § 3.156(a), which was effective August 29, 2001. VA is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.
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In the present case, the Board finds that the veteran is currently diagnosed with
degenerative joint disease in both hips. The Board notes that in November 1998,
the veteran was examined at a VA hospital and given a magnetic resonance imaging (MRI) of his pelvis. The November 1998 MRI report noted there was no definite evidence of avascular necrosis or joint fluid. of the hips and the study of the hips was normal. An August 200 1 VA medical examination indicated that the veteran had arthragia (pain) in his right hip. In October 2002, Howard G. Miller, M.D.,
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relying on the same MRI films used in the November 1998 VA medical note, found that the films suggested early osteoarthritis of the veteran's hips. Dr. Miller also diagnosed the veteran with bilateral hip osteoarthritis at the October 2002 examination.
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At the time of a VA medical examination in June 2003, the veteran was diagnosed
with degenerative joint disease in both hips. The examiner did not address the ,
etiology of the degenerative joint disease. Since, this evidence alone is not enough to grant or deny service connection, the Board finds that a current VA examination which provides an etiology opinion regarding any hip disorders is needed. If the ,medical evidence of record is insufficient, or, in the opinion of the Board, 0f doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following actions:
1. The RO should contact the veteran and ask that he identify all sources of private medical treatment for his hip disorders since October 2000, and to furnish signed authorizations for release to the VA of private medical records in connection with each non- VA source identified. Additionally, the RO should request that the veteran provide information as to the dates of any treatment for his hip disorders at any VA Medical Center (VAMC) since October 2000. Copies of the medical records from all sources, including VA records, (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. If requests for any private treatment records are not successful, the RO should inform the
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veteran of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 CFR § 3.159 (2003). The RO should also request or tell the veteran to provide any evidence in his possession that pertains to his claim. Furthermore, the veteran should be specifically informed as to what portion of evidence he is required/expected to submit, and which portion of the evidence the VA would attempt to obtain in order to assist the veteran in substantiating his claim, per 38 U.S.C.A. §§ 5103(a), 5103A; Quartuccio, supra; Charles, supra.
2. After the development described above has been completed, the RO should make arrangements with the appropriate VA medical facility for the veteran to be afforded' an orthopedic examination to show the severity, and etiology of the claimed hip disorders. If no hip disorders are found by the examiner, the examiner should so indicate. The RO must make the claims file available to the examiner. The claims folder must be thoroughly reviewed by the examiner in connection with the examination. The examiner should indicate in the examination report that the claims. file was reviewed. All necessary tests and studies should be conducted in order to render a diagnosis of the claimed hip disorders. The examiner should review all of the veteran's medical records and history, including but not limited to the service medical records dated from March 1979 to June 2000 and the MRI film of the veteran's pelvis referenced in the November 1998 VA medical note. Additionally, the examiner should review the post-service medical evidence, including but not limited
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to Dr. Miller's medical note dated in October 2002. Following an examination of the veteran and a review of his medical records and history, the examiner should render an opinion as to whether it is at least as likely as not that the currently claimed hip disorders were incurred in or aggravated during the veteran's active service, became manifest to a compensable degree within a one year period of his discharge from active service, or are otherwise related to his active service. Lastly, the VA specialist should render an opinion as to whether it is at least as likely as not that the claimed hip disorders are related to any post-service event(s) or .. diseases, including aging. If the etiology of the claimed disorders are attributed to multiple factors/events, the examiner should specify which symptoms/diagnoses are related to which factors/events. It is requested that the VA specialist reconcile any contradictory evidence regarding the etiology of the veteran's claimed hip disorders. All pertinent clinical findings and the complete rationale for all opinions expressed should be set forth in a written report.
3. Thereafter, the RO must review the claims folder and ensure that all of the foregoing development efforts have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Remand instructions of the Board are neither optional nor discretionary. Full compliance with such instructions is mandated by law, per Stegall v; West, 11 Vet. App. 268(1998).
4. After completion of the above, the RO should undertake a de novo review of the veteran's claim of entitlement to service connection for osteoarthritis of the
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right and left hips. If the determination remains unfavorable to the veteran, he and his representative should be provided with a supplemental statement of the case and be afforded an opportunity to respond before the case is returned to the Board for further review.
Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations.
The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2003) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566,569 (1991).
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of
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2003, Pub. 1. No. 108-183, § 707(a), (b), 117 Stac2651 (2003) (to be codified at 38 U.S.C. §§ 51O9B, 7112).
A.BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).
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